Zockert v. Fanning, 310 Or 514, 800 P2d 773 (1990), describes two
categories of civil cases in which the clear and convincing standard of proof might be
proper. One category is not relevant to this case: quasi-criminal actions. Id. at 527 (citing
Riley Hill General Contractor Inc. v. Tandy Corp., 303 Or 390, 405, 737 P2d 595
(1987)). The relevant category consists of actions in which the evidence required to
prove a particular kind of fact is of questionable reliability or trustworthiness. Id.
Easement by prescription cases and abandonment by nonuse cases are within that
category. In recognizing the creation of an easement by prescription, a court reallocates
relative rights to the use of a parcel of land based on proof of how the purported easement
holder has viewed and used it: Was the use adverse, continuous and uninterrupted over
time? E.g., Garret v. Mueller, 144 Or App 330, 336, 927 P2d 612 (1996), rev den 324 Or
560 (1997). A court performs essentially the same function when it determines that an
easement is extinguished by abandonment. In such cases, a court also reallocates relative
rights to the land based on proof of how the easement holders have thought of and used it:
Have they expressed or manifested an intent to make no further use of the easement?
E.g., Abbott v. Thompson, 56 Or App 311, 316, 641 P2d 652, rev den 293 Or 103 (1982).
In both types of cases, the relevant party's intent may be difficult to discern with accuracy,
and any direct testimony from that party must be critically screened for the possibility of
"self-serving declarations." Powers et ux v. Coos Bay Lumber Co, 200 Or 329, 398, 263
P2d 913 (1954). Given the similarity in the kinds of interest at stake, the facts to be
proved, and the inherent difficulty of demonstrating the relevant intent, logic and
consistency suggest that both types of claims should be subjected to the same standard of
proof.

More persuasive, however, is the fact that Oregon courts have applied the
clear and convincing standard to extinction-of-easement claims based on reasons other
than abandonment. For example, in Slak v. Porter, 128 Or App 274, 278, 875 P2d 515
(1994), this court applied the clear and convincing standard to a claim that an easement
was extinguished by adverse possession. Similarly, an easement was held to be
extinguished by consent of the parties in Tusi v. Jacobsen, 134 Or 505, 515, 293 P 587
(1930), only after the court was "convinced" by "decisive and conclusive" evidence of
consent. We can discern no good reason why a claim that an easement no longer exists
should be judged by a different standard depending on whether the facts giving rise to the
claim establish consent, adverse use, or abandonment. In all those cases, easements are
extinguished on the basis of proof regarding the particular actions and attitudes of the
parties. And in all those cases, the same presumption applies: that easement rights remain
secure in the party in whom they are vested by deed or other express grant unless clear
and convincing proof to the contrary overcomes such a presumption.

Finally, we note that, although Oregon courts have not previously specified
what standard of proof to use in abandonment cases, they have implicitly held the
evidentiary bar to a level significantly higher than the preponderance standard. In
Bernards et ux v. Link and Haynes, 199 Or 579, 248 P2d 341 (1952), adhered to on
rehearing 199 Or 604, 263 P2d 794 (1953), for example, the court quoted extensively
from a number of authorities before concluding that a railroad right of way was not
abandoned when it was sold and converted into a road for logging trucks. Id. at 591.
Among the authorities cited was the following:

"Thompson on Real Property, Perm. Ed., §700 says:

'"* * * An easement created by deed is not defeated by mere nonuser.
There must be in addition other acts by the owner of the dominant estate
conclusively and unequivocally manifesting either a present intent to
relinquish the easement or a purpose inconsistent with its further
existence."' Bernards, 199 Or at 589-90 (emphasis added).

In another early abandonment case, the Supreme Court noted that at common law "the
courts are not inclined to favor forfeiture of easements unless the intent to abandon them
plainly appears." Deanv. Colt, 160 Or 342, 347, 84 P2d 481 (1938) (citations omitted).
The courts rarely find such intent, and when they do it is because the acts manifesting the
intent have so fundamentally changed the landscape that further use of the easement is
deemed impossible. See Haskell v. Borshowa, 271 Or 326, 333, 532 P2d 14 (1975)
(easement abandoned when building addition made it impossible to use easement without
trespassing on neighboring property); Dean, 160 Or at 347 (partial obstruction that does
not prevent use does not manifest intent to abandon); Abbott, 56 Or App at 313, 316 (lack
of maintenance that renders an easement difficult, but not impossible, to use does not
evince intent to abandon).

"To entitle a party to the decree of a court of equity, reforming a written
instrument, it is incumbent upon him to establish [the grounds] by proofs,
so satisfactory in their nature as to preclude all question. Equity tolerates
nothing less. * * * Relief will not be granted whenever the evidence is
loose, equivocal, or contradictory, or when, in its texture, it is open to
doubts and opposing presumptions." Shively v. Welch, 2 Or 288, 290
(1868) (citation omitted).

Moreover, contrary to defendant's theory, ORS 10.095(5) does not provide
the exclusive standard of proof for civil cases. As the Supreme Court observed in holding
that the "clear and convincing standard" applies to actions for common law fraud:

"ORS 10.095 is not cast in absolute terms. It requires the jury be instructed
to apply the 'preponderance' standard 'on all proper occasions,' thus leaving
some discretion for this court to decide which cases are proper for such an
instruction and which are not." Riley Hill, 303 Or at 407 (citing Mutual of
Enumclaw Ins. v. McBride, 295 Or 398, 405, 667 P2d 494 (1983))
(emphasis added).

Clear and convincing evidence is evidence that is "free from confusion,
fully intelligible, distinct" and which establishes that the truth of the asserted fact is
"highly probable." Riley Hill, 303 Or at 407. In this case, that means the dispositive
question is: Does unambiguous evidence lead with a high degree of probability to the
conclusion that the curb, bushes and berm plaintiffs installed rendered access to the
easement impossible (or so impractical as to be virtually impossible), thereby
demonstrating an intention to abandon it?

In short, we cannot say that the evidence establishes to a high degree of
probability that plaintiffs manifested an intent to abandon the easement by installing a
curb, hedge and berm. Nobody testified to that effect, nobody contradicted testimony
from one plaintiff that he had actually used the easement, and the photographic evidence
is inconclusive.

4. Although the court found that, "on the face of it, both witnesses have
impressed the court and seem to be even reasonable people," the court immediately
qualified that observation by finding that, "[o]n balance, it makes more sense to me to
think that the defendant more accurately is reflecting the facts that have occurred on the
ground." That finding cannot be viewed as the kind of credibility determination to which
a reviewing court defers, that is, one based on demeanor. Rather, it is a conclusion that
defendant's version of events is more logical and internally coherent than plaintiffs' and
therefore more probably accurate. Thus, even if we were to defer to the finding
completely, it simply restates the preponderance standard, which, we have determined, is
not enough.

5. An additional inference regarding maintenance on the building can be
drawn from the photographic evidence. The pictures identified by defendant as taken
when plaintiffs first developed their property in 1987 show the building to be grey in
color with green trim; other photographs submitted by plaintiff carry a date-stamp of
October 12, 1999, and show the building painted white. Presumably, the easement would
have to have been used to access the rear of the building in order to paint that side.